Wong Hing-chung v. The Queen

CACC000450/1971

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 450 OF 1971

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Coram: Huggins, Pickering & Leonard JJ.

Date of Judgment:

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JUDGMENT

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Leonard J.: The appellant in this case faced 4 charges in the court below. The first charge was that of going equipped for theft contrary to section 27(1) of the Theft Ordinance in that on the 14th May 1971 outside 580C Nathan Road, ground floor, in this Colony he had with him an article for use in the course of or in connection with theft, namely a hammer.

2. The remaining 3 charges were of thefts on earlier dates of Rol watches from 3 different watch shops.

3. The appellant appealed against conviction. Complaints were made by counsel for the appellant as to the manner of trial and the admissibility of evidence. Firstly, he claimed that the trial judge erred in law in admitting in evidence the statement allegedly made to the constable at the time of arrest. Secondly, he claimed that the "cautioned" statement should not have been admitted because the evidence adduced in support of it at the voire dire was insufficient in law to establish its voluntariness. Thirdly, he claimed that the certificates of guarantee from which the jewellers purported to identify their watches were inadmissible as being hearsay evidence of their contents and fourthly that in consequence the evidence of identification of the watches should not have been given any weight.

4. The evidence of the Crown on the first charge was that of a police constable who, at the date in question, saw the appellant loitering near a watch shop at 580C Nathan Road, challenged and searched him and at the leftside of his trousers, tucked in the top, found a hammer wrapped in paper. Not unnaturally, the constable asked the appellant to account for the hammer; whereupon the appellant said that he wanted it to break the shop window and steal watches. He was arrested and cautioned.

5. At the police station, the police constable wrote down the caution in his notebook and asked the appellant if he or the constable should write down what the appellant had said earlier. It was sought to adduce the notebook in evidence but the trial judge rejected it saying "I do not think this is admissible or that it takes your case any further. The witness told the defendant either he or the defendant should write it down. There is already in evidence the earlier voluntary statement. I see no point in accepting this entry as evidence."

6. It will be noted that the trial judge referred to the oral statement made in the street in answer to the constable's query as a "voluntary" one before the appellant (who was unrepresented) had had an opportunity of disputing whether it was voluntary [or, indeed, made at all]. In the result the appellant did not cross-examine the constable as to this oral statement nor, in his unsworn statement from the dock, did he allude to it again. Indeed the only further oral evidence which could possibly be construed as relating to the statement comes in the voire dire concerning the admissibility of the written cautioned statement admitting other offences to which I refer later. The appellant gave evidence on oath on this voire dire in the course of which he said "When there [i.e. at the police station] he asked me about the hammer and, of course, I denied knowing about it."

7. The same police constable gave evidence that, at the police station, he cautioned and questioned the appellant about thefts from watch shops in which Rolex watches had been stolen and hammers had been used to break the shop window.

8. The admissibility of the written cautioned statement concerning these thefts was challenged but the statement was admitted after the trial judge had held a voire dire in which the appellant exercised his right to give evidence and after the trial judge had been satisfied beyond reasonable doubt that the statement was voluntary.

9. According to further evidence for the prosecution the appellant, in accordance with a promise made by him in the written statement admitted by the trial judge, after the voire dire, led the police to recover some watches. The persons from whom these watches were recovered gave evidence indicating that the watches had been received from the appellant. The persons from whom watches had been stolen, having given evidence of the thefts, purported to identify various of the watches, as watches stolen from them, by reference to "certificates of guarantee" bearing the same numbersas the watches recovered from persons to whom the police had been led by the appellant.

10. To support his first complaint counsel for the appellant argued that since the statement in question was allegedly made to a person in authority the question of its admissibility should have been canvassed. He argued that, since the accused was not represented, the trial judge should himself have raised this issue, that he should, as soon as he knew of the extra judicial confession, have advised the appellant that he could challenge it. Mr. Tang for the appellant sought to rely on Lee Tat v. The Queen [1969] H.K.L.R. 349 in support of this contention. In that case after the appellant had been arrested and after he had made 2 statements (one ruled by the trial judge to be inadmissible and one ruled by the Full Court to have been improperly admitted) he made a third confession gratuitously when the nature of an identification parade was being explained to him. Counsel for the appellant had claimed that his statement was inadmissible because of a threat and counsel for the respondent had conceded that it had been admitted without the appellant's being asked whether he objected. The Full Court had this to say:

"While we sympathize with the judge, who was probably as surprised by this evidence as was the police officer surprised by the statement when it was made, we think this evidence should not have been admitted (and indeed should not have been led) until the question of admissibility had been canvassed. .... In all the circumstances we think it would be unsafe to allow this conviction to stand."

11. In Lee Fat v. The Queen the Full Court referred with approval to Lam Yuet-ching v. Reg [1968] H.K.L.R. 579, a magistrate's appeal in which an unrepresented appellant made two confessions while in custody. The appellate judge (Huggins J.) commented at p.580:

"Before me the appellant has contended that the confessions were extorted .........[T]here is nothing on the record which would have led me to hold that a finding that the confessions were voluntary was wrong. It is questionable whether there was such a finding but, in any event, it appears to me that there may have been a fundamental procedural error in the admission of these confessions.......[O]n the first occasion (the note book was produced) the appellant said 'I cannot refuse to sign - must sign'. He was not asked to elaborate but as he was not professionally represented I think it ought to be assumed that he was objecting to the admissibility of the first confession on the ground of inducement. The witness, a detective police constable, was then cross-examined and denied having beaten the appellant. The magistrate then records:-

There is no indication preceding this ruling that the appellant was made aware either that issue had been joined upon the voluntariness of the confession or of the procedure to be followed in deciding that issue."

Again as to the 2nd confession:

"There is nothing to show that up to this moment"

(the moment when the second confession was admitted)

12. The notes of proceedings in that case were inadequate but it was clear that the appellant was alleging inducement in respect of the first statement and if there were such an inducement it might well have affected the subsequent statements. It was in those circumstances that the judge said that the magistrate should, even in the absence of a formal objection to the admission of the evidence, have put the issue fairly and squarely. Neither case can be regarded as authority for the sweeping proposition that in all cases where extra judicial confessions are sought to be adduced an unrepresented defendant should be invited to challenge the voluntariness of them - particularly where they are alleged to have been made before and to have been the cause of arrest. Judges at first instance are properly loath to invite perjury and appellate courts to require them to do so.

13. The evidence in this case was to the effect that, on being caught with a hammer outside a jewellers shop and on being asked what the hammer was for, the appellant spontaneously indicated that it was for use in a smash-and-grab raid on the shop. Admittedly the trial judge erred in referring to the statement as "voluntary" before the witness had even been subjected to cross-examination but we are satisfied that he meant the "alleged" voluntary statement and that his use of the word "voluntary" in no way indicated that he had, at that stage, made a finding either that the accused had made the statement or had made it voluntarily. What he said might, we consider, properly be construed as being addressed to Crown Counsel and as meaning 'You have put the statement in in its verbal form - why are you seeking to put in an inadmissible record of it?"

14. As to Mr. Tang's second complaint - that regarding the statement admitted after the voire dire - although he sought in a subtle argument to suggest that the trial judge may have been influenced by his untimely decision that the oral statement was voluntary and argued that the evidence in support of that written statement was but a scintilla, it is clear that the trial judge was quite satisfied that the statement was voluntary - a satisfaction that was doubtless enforced by the references in the statement itself to an attempted smash and grab raid at the Shing On Kee Watch Company and a raid on the Yan Kee Goldsmith Shop in which the appellant admitted stealing 5 diamond finger rings, about neither of which crimes was the appellant questioned and with neither of which was he charged. We see no merit in this ground of appeal.

15. The argument concerning the admissibility of the certificates of guarantee relating to the watches in question and their consequent identification at first caused we considerably more trouble.

16. Basically this argument rests on the contention that these certificates insofar as they purport to refer to a watch bearing particular numbers, were hearsay evidence and that therefore the evidence identifying the watches as being stolen property was based on hearsay and accordingly of no probative value Consideration of this question was not made easier by the absence from the record of appeal of the certificates themselves. This absence we deprecate. We were left to assume that each certificate of guarantee contained a promise to repair a watch bearing a particular number should it require repair within a certain period of its retail sale. Counsel for the appellant sought on the authority of R. v. Sealby [1965] 1 All E.R. 701 (following Myers v. D.P.P. [1964] 2 All E.R. 881; 1964 3 W.L.R. 145) to urge that these certificates of guarantee should not have been looked at to establish identification of the watches; in the same way (he urged) a motorcar registration book is not admissible evidence of its contents, in particular of the chassis number and engine number of the car. The 2 cases cited are clearly authority for that contention but in those 2 cases the chassis and engine numbers were matters in issue. Here the numbers of the watches were not in issue - the watches were before the Court. Again, counsel for the appellant failed to make clear of what statement in the certificate evidence was being given by their production. The certificates were documents coming from the custody of the victims of thefts of watches but they did not say anything relevant about those watches. They did not, as does a motor registration book, say that an article (be it car or watch) bearing a particular registration number should also bear a particular chassis or engine number.

17. It was perhaps wrong for the witnesses in question to be allowed to say, as they did, "I identify this watch as being mine because it bears a number which is also on a certificate of guarantee which I have." In so saying they were making an assumption, or arriving at a conclusion, from the evidence as they saw it and so, to some extent, usurping the function of the Court. It would however have been open to them to have said, "I see the number on this gold Rolex watch. I have a certificate which bears the same number. A gold Rolex watch of the same type as this watch was stolen from me on a given date. Because I have this certificate I invite the Court to infer that this watch is the watch stolen from me." The Court would unhesitatingly have made that inference. That the inference was made by the watch owners and accepted by the Court does not, we consider, alter the realities of the situation. We therefore would hold that the certificates are not hearsay evidence of any fact, they do not make any statement of the kind made in a motor registration book.

18. We would for these reasons dismiss this appeal.

Representation:

R. Tang assigned for Appellant.

Duckett S.C.C. for Respondent.